March 2007

In our update this month we review developments in February and March. In our April update we shall be publishing a specific article about family friendly policies in the work place.


Age Discrimination

 We reported in our January update that there was a challenge in the European Court of Justice supported by the National Council on Ageing. The premise of the challenge was that the Equal Treatment Directive had not been properly implemented in the UK, as staff could still be forced to retire at 65 even if they wished to carry on working.

The Spanish case of Palacios v Cortefiel Servicios SA (this link goes to the index. You will need to scroll down to the case reference) has been referred for an opinion by the Advocate General. The opinion stated that the EU Directive did not apply to state laws setting retirement age, and even if they did a National provision was justified. The opinion itself does not have to be followed by the European Court of Justice but in practice it usually is. In the light of this, the referral by the National Council of Ageing seems doomed.

That is not the only challenge on retirement ages. It was reported in the Lawyer Magazine on 19th February that the magical circle firm Freshfields is facing a challenge from one of its partners. Because partners are not employees there is no default retirement age and a mandatory retirement age is therefore potentially unlawful unless it can be justified. The case will have ramifications for all partnerships.

Elsewhere the TUC and Chartered Institute for Personnel Development (CIPD) have launched their own guide to clarify what they believe to be misunderstandings about new age laws.    
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Bullying at work

 Just Fight On a voluntary organisation dealing with bullying and harassment has produced a return to work toolkit. It is estimated that the costs of lost production are in the region of 18 million lost days with the Chartered Institute of Personnel development estimating that the financial cost is some £2 billion per year. The European Social Fund provided the finance for the development of the kit. Of employees questioned about the impact of bullying and harassment, some 24% resigned and 16% were sacked, 9% were ill health retired and a further 3% retired early. The toolkit is intended to assist employees returning to work after taking time out due to bullying.

Elsewhere the basic skills agency have undertaken an analysis on Army recruitment showing that up to half of recruits had numeracy or literacy skills no better than the average primary school leaver. The Army believe that assessing the needs of their recruits will lead to improved training practices and a reduction in bullying. All commanding officers are now subject to a supervisory care directive dealing with the management of the risks of recruits and the maintenance of an at risk register. The analysis that has been undertaken follows the well publicised death of four trainees at Deep Cut Barracks.    
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Trade Unions and Consultation

 The European Court of Human Rights has upheld the right of Trade Unions to exclude members of the BNP from membership. The Court held in the case of Aslef V UK that the right of the Union to choose its members outweighed the right of BNP members to freedom of expression.

All employers of more than 100 now have a potential obligation to inform the workforce of significant changes affecting them and to consult. The company can be, subject to certain procedural steps, required to ballot the workforce. In a case involving MacMillan Publishers and Amicus the publishing company were criticised by the central arbitration committee for their failure to commence negotiations or embark on a workplace ballot. Although the case may seem of only passing interest to most employers, from 1st April 2007 any company with more than 100 employees and from 1st April 2008 50 employees, can be the subject of a request by employees to set up mechanisms for consultation. It only needs a trigger of 10% of the workforce before the process has to be put in place. Given that there are potential penalties of up to £75,000 for failure to comply, the process needs to be taken seriously.

The views of the workforce can prevail in even the most surprising environments. The Times reported on 15th March that teachers at Newcastle under Lyme School, an independent school, had voted to take industrial action over the dismissal of one of their colleagues. It would appear that there was fairly general support from parents and pupils.    
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Dispute Resolution

 The Statutory Dispute Resolution Procedures covering grievance and disciplinary practice have been in force now since October 2004. The procedures have been much criticised, but the DTI has published an independent review of them and are now launching a consultation with a view to repealing the regulations.

The Gibbons report makes a number of recommendations including the repeal of the Dispute Resolution Regulations and replacing them with clear non-proscriptive guidelines on grievances, dismissal and discipline and the promotion of arbitration.

In our view the procedures have significant failings, but at the same time do not believe that they should be abolished, merely reformed. Full analysis of the procedures can be found elsewhere on our website. It is largely the grievance element of the regulations that has caused grief and which needs attention. We would say that the standard dismissal and disciplinary procedures are straight forward and should not really present any problems for employers. However, it is quite clear that mediation should be encouraged.

At the moment there is the somewhat anonymous position that claims for unfair dismissal have to be presented within three months, whilst claims for constructive dismissal following grievances may well have up to six months before a claim has to be lodged. Because of the very tight time scales a disgruntled dismissed employee has little alternative but to pitch straight into litigation. It ought to be possible to provide for a cooling off period to enable mediation or discussions between the parties. In our view tribunal proceedings should be the last resort and more robust mechanisms ought to exist to enable negotiated solutions outside of the tribunal. That might entail giving a role to ACAS before even proceedings are issued.

On a slightly different note, the British Chambers of Commerce estimate that the burden of regulation in the UK has now reached an annual cost of £10.3 billion.    
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Equal Opportunites

 The new head of the Human Rights Commission has suggested through the equalities review report, Fairness and Freedom, that mothers with children were some of the most disadvantaged in the workplace. A survey of 152 recruitment agencies revealed that 70% of them had been asked to avoid hiring pregnant women or those of child bearing age. Trevor Phillips told the Radio 4 Today programme “Equality is not a minority zone, the majority of people in this country are women and disadvantaged… Unemployment of women costs us about £28 billion per year”.

BP and Goldman Sachs are among organisations that have joined a Government scheme to improve job opportunities for women. They and other “exemplar employers” will commit to reducing the gender gap and a “quality part time work fund” of £500,000 is being established to help employers finance trouble-shooters to advise on how to create and retain part time jobs for women at a senior level.

At the same time, the High Court has ruled that the Government has failed to implement EU legislation on sexual harassment and pregnancy discrimination. His Honour Judge Burton, in a case promoted by the Equal Opportunities Commission, found that the definition of harassment in the regulations was too narrow and gave no protection to women harassed by clients, which is a particular problem in the hotel and restaurant sector. The Judge also ruled on the need for a pregnant woman bringing a discrimination case to produce a “comparator”. The full decision can be read here.

The Scottish Equal Opportunities Commission has launched its own programme to ensure that pregnancy related discrimination is minimised, by the production of a leaflet detailing rights and responsibilities to be handed to women at the 12 week scan. On a slightly different tack, the British Chambers report that female entrepreneurs still come home to do most of the house work with 72.8% in charge of the laundry.

As reported in our Stop Press a couple of weeks ago, Jessica Starmer won her battle with British Airways to be allowed to work part time. She alleged that the airline discriminated against her by refusing to allow her part time work saying that this amounted to indirect sex discrimination as women pilots were more likely to need to work part time then their male comparators. The airline’s appeal was dismissed but initially the company announced their intention to take the matter to the Court of Appeal. The company has now retracted that and said that pilots in similar circumstances to Mrs Starmer would be eligible for 50% contracts in the future.

Children’s Minister Beverly Hughes has suggested that flexible working ought to be available to all employees, and her announcement has been welcomed by the Chartered Institute of Personnel Development. The CBI has said that the impact of the changes next month should be reviewed before any further extensions are contemplated. The Equal Opportunities Commission believe that 6.5 million people in the UK would make better use of their time by working flexibly.    
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Health and Safety

 A full update on health and safety matters is produced by our official health and safety partners, Mesh Consultants. We confine ourselves to reminding employers that the new regime on smoking in the workplace comes into force on 1st July 2007. Councils have been given a budget of £29.5 million to recruit staff to enforce the ban and 1,200 council officers are to be trained. In case there is anybody in Britain who is not aware of the smoking ban, employers will have to put up no smoking signs in their premises and company vehicles or face a fine.    
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Maternity

 The rate of statutory maternity pay rises to £112.75 from 1st April 2007. This is also the rate for paternity and adoption pay.    
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Minimum Wage

 The Employer’s Forum on Age believe that the rate for young adults i.e. 18 – 21 years old should be brought into line with the full rate suggesting that it is an act of age discrimination if it continues.

Given the intention to raise the school leaving age to 18 our view would be that there would be a very real reluctance to take on school leavers if the differential rate is abolished.    
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Pay and Benefits

 People Management Magazine records that city bonus payments in 2006 totalled £8.8 billion. This is somewhat more than the norm in rural Elham where we are headquartered. Bonuses tend to be measured more in bags of apples or Danish Pastries from the village shop.

Neither of these particularly Elham style bonuses are mentioned in a survey published in People Management Magazine of favourite perks. Not surprisingly a pension plan is at the top of the list followed by holidays. Perhaps of some significance is that training and development is the fourth most popular perk appreciated by some 80% of the workforce. Whilst we have not specifically thought of training and development as a perk, more as a necessity, it is reassuring to know that good training is valued by the workplace at large. Perhaps there are productivity lessons to be drawn.    
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Racial Discrimination

 The Army is to make a point of recruiting a higher percentage of soldiers from ethnic minorities. Current figures are 4.1% of the forces; the ambition is to get up to 8%. The Army acknowledge that they do well in the Afro Caribbean communities, but lack recruits of Asian backgrounds.

In an interesting development Pat Gravell has won the right to bring a claim for racial harassment against Bexley Council. She herself is white, but felt that she was harassed by jokes insulting black people that were circulated as text messages at work. The EAT believed her case had merit and she should be allowed to present it. The Employment Tribunal had initially dismissed the claim as having no reasonable prospect of success.    
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Religious Discrimination

 Aishah Azmi has lost her appeal against the decision of the Employment Tribunal on her case against Kirklees Council.

People Management Magazine report the statistics in the Tribunal Service Report that 377 religion or belief claims were lodged in the first 15 months of the regulations, but in the 12 months covered by the report from April 2005 to March 2006, 486 were registered. Apparently claims have been predominately from the followers of Christianity, Judaism and Islam and have focused on time off for religious practice and dress code.    
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Sexual Orientation

 The charity Stonewall has issued a guide for managers and HR Professionals providing information about gay bullying. Recommendations include the introduction of inclusive policies and improved training.

New regulations on the discrimination on the grounds of sexual orientation in the provision of goods and services come into force on 30th April 2007. The passage of the regulations has not been easy and has attracted a great deal of media coverage because of the application for adoption arranged through catholic adoption agencies.

In Scotland Jonah Ditton secured £118,309 compensation. He was a media sales manager who was sacked for being gay. He had expected to earn £80,000 per year with his sales job, but only worked for 8 days having been accused of being a ‘wee poof’ and looking like a ‘cream puff’.    
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Sickness Absence

 The Department for Work and Pensions is currently negotiating with “stake holders” about changes to the current sickness certification process. Currently the FMed 3 certificate is deemed to be for the patient’s information despite the fact that it is consistently provided to the employer as evidence of incapacity for work. The Commercial Occupational Health Providers Association believes that the certificate needs to say very much more about the diagnosis, treatment and any potential adjustments required. The BMA has grave reservations about this suggesting that it would represent a significant increase in GPs workload as well as drawing them in to part of the sickness management process. The view expressed by their spokesman Dr Holden was “the BMA’s view is that we shouldn’t have to provide sickness certification for absences of less than one month.    
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Stress

 The case of Intel Corporation UK Ltd v Daw has introduced a significant change of emphasis in the dealing with workplace stress. As a result of the case of Hatton v Sutherland the Court set out various benchmarks for the consideration of liability on the part of the employer. One of those was the provision of workplace counselling. In the Daw case she worked for the payroll department and had made numerous protests about work load and organisation of work. Despite her protests, additional staff were not taken on and the Court of Appeal held that the provision of a counselling service was not a panacea as the employee’s problems could only be dealt with by the management reducing her workload, even though she had not taken advantage of the counselling service.    
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Temporary Workers

 The Government has introduced a strategy paper “Success at Work” looking at ways at protecting vulnerable agency workers. The consultation document includes suggestions amongst others

The formal consultation document can be viewed here.

Elsewhere a private members bill proposed with the full support of the trade union movement proposed giving agency workers the same rights to paid sick leave and overtime as directly employed staff. If the bill had been passed in to law that would have provided the same level of protection as was being proposed in the apparently defunct Agency Workers Directive.    
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Tribunals

 Where an employee succeeds in establishing that he has been unfairly dismissed, a Tribunal is nevertheless entitled to reduce the compensation because of contributory fault. This applies almost always to cases of misconduct.

In the case of Whitehead v Corley School and another, Mr Whitehead was sacked after a relatively minor incident involving an unruly pupil. He claimed unfair dismissal, but the compensation was reduced by 50% on grounds of contributory fault. The Appeal Tribunal sent the matter back for fresh consideration by the Employment Tribunal as in the original finding, the Tribunal had approached contributory fault as part of the same exercise in deciding whether the employee was unfairly dismissed. The Appeal Tribunal had made it clear that these are two separate exercises and that the Tribunal should move on to issues of contributory fault only after reaching a decision on the merits.

Another case of contributory fault was that of Mullinger v DWP where the tribunal decided that his award should be reduced by 75% because of his “reprehensible conduct after dismissal”. As post-termination conduct is supposedly irrelevant in assessing loss, the Appeal Tribunal allowed Mr Mullinger’s appeal. However, the Appeal tribunal did accept that there might be a close connection between the post termination misconduct and the employment. We await further enlightenment as to how this might work.

Unfair dismissal cases generally need to be brought within a three month time limit. The Tribunal can extend this if it was not reasonably practicable for the claim to be presented. In the case of Royal Bank of Scotland v Theobold the Tribunal said Theobold had been assisted by the Citizens Advice Bureau but failed to lodge his application on time. As Mr Theobold had downloaded a claim form from the Tribunal Service website shortly before the expiry of his three month period, the tribunal were correct in not allowing his application to proceed. Within the judgement the appeal Tribunal drew a distinction between cases where the CAB had offered advice and cases where the CAB had assumed responsibility for presenting the claim form. The decision must therefore open the door to the possibility of a claimant saying that he received incorrect advice from an advice agency and issued as soon as he realised the advice was wrong. Who knows when that period of grace would expire. Would it be one month outside the time limit, three months or never? If the Government is reviewing the dispute resolution procedures (see above) then it might like to give some thought to harmonising the time limits.    
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Education

Schools

Bullying and New Powers of Restraint for Teachers
Bullying in schools has again been hitting the headlines of late. In February two senior high court judges Mr Justice Lloyd Jones and Lady Justice Hallett ruled reluctantly that the CPS may bring charges against an 11 year pupil of an unnamed Hertfordshire school. The boy known only as “H” was involved in an incident with two classmates last October, claimed he was only defending himself. “H” was previously of good character and his Counsel Jemma Levinson said: Both incidents involve school fights, no injury of any sort, no damage to clothing – nothing exceptional, in my submission. I am not suggesting this behaviour ought to be tolerated but it is exactly the sort of behaviour the chairman of the Youth Justice Board said was properly dealt with “in situ” in school and there should be no swamping of the youth courts unnecessarily”. Another unnamed independent school is under police investigation over allegations of “web torture” where victims were tied to chairs and forced to watch internet images of torture, murder and child pornography. This so called “cyber-bullying” is causing increasing concern in schools as the boom in communications technology means pupils are vulnerable to humiliation and intimidation by others using mobile phones, emails, messaging software and social networking websites such as Bebo. Research by Goldsmiths College and the MSN text messaging service showed that one in 10 and a quarter of children had experienced some form of cyber bullying and that parents are not aware of the phenomenon. The DfES is so concerned that it has commissioned an agency to design material to be sent to children via text messages and websites warning of the dangers and giving advice on how to deal with the problem. In addition teachers have been given new statutory powers to confiscate mobile phones if they suspect they are being used for bullying. Much of the 2006 Education and Inspections Act comes into effect from 1st April and gives teachers new rights to physically restrain and discipline unruly pupils, impose detentions outside school hours. Teachers will also be able to discipline pupils outside school too if they see children behaving badly on public transport. The general secretary of the National Union of Teachers Steve Sinnott welcomed the changes but said the government should do more to explain them to schools and parents.

Truancy
The DfES claims new detailed attendance records with data from more than 400 secondary schools should enable schools and local authorities to target persistent absence more effectively. The data, gathered on a termly basis for individual pupils rather than annual figures on a school level, revealed that 2.4% of over 3 million secondary pupils accounted for more than half of all unauthorised absence. Some key findings were also surprising in that girls were more likely to truant than boys, and pupils eligible for free school meals have three times the rate of unauthorised absence than other children. Children of Travellers, white and Black Caribbean have the highest rate of persistent absence while pupils of Asian, Black and Chinese ethnic origin are below national average. Jim Knight Minister for Schools said: “The figures show that we are dealing with a small minority of persistent absentees who account for most absence. It makes sense to clamp down on these as an absolute priority.” The DfES is paying for the more than 400 schools identified with high levels of persistent absence to use a text message alert system, which links to the electronic register automatically texts parents and pupils when they do not show up at school. From 1st April heads will also be able ask judges to impose parenting orders on parents of persistent truants without having to go through the local authorities.

Curriculum
Following complaints from several leading independent and state schools the Universities and Colleges Admissions Service’s (Ucas) has announced a fundamental review of the points systems that values all sixth form qualifications. Criticism concerned the disparity in the valuation of the International Baccalaureate (IB) compared with A’Levels. Ucas concluded that the existing system of weighting qualifications was no longer fit for purpose. By 2010 the grades of sixth formers will be measured according to a new tariff intended to compare the IB and A’Levels more fairly. Currently a top score of 45 in the IB is worth 6 ½ A-grades at A Level. While news that the last examination board the OCR is to drop the teaching of Ancient History and introduce a new Classical Civilisation qualification dismayed the Conservative Party. Boris Johnson the Conservative higher education spokesman described the decision as “demented”. Mr Johnson who presented a BBC TV series on the Roman Empire and is president of the Joint Association of Classical Teachers said: You can’t just subsume the study of Ancient History into the study of classical Civilisation. You might as well say that you can learn English history through the study of English language and literature. Classics was he said “a tough, rewarding, crunchy subject giving way to a softer option”. A spokesperson for OCR said “OCR has consulted widely among examiners, teachers, professional associations, universities and those delivering the existing specifications. It is designed to allow classics to flourish over the next decade meeting the needs of schools and colleges – and matches the revised Qualifications and Curriculum Authority subject criteria”. Concerns have also been raised in a report published by the Historical Association about the difficulties of teaching emotive subjects such as the Holocaust and the Slave Trade. The report commissioned was last year by Lord Adonis who said then the content of the new national curriculum “was likely to resonate in multicultural classrooms”. The research claims that some schools avoid teaching the Holocaust and other controversial subjects because they do not want to cause offence or to appear insensitive. Teachers fear meeting anti-Semitic sentiment from Muslim pupils, an example is cited of school that did teach the Holocaust but avoided the crusades because it challenged what was being taught in the local mosque. The slave trade too can leave both white and black children feeling isolated if the role of the white reformers is downplayed and the Afro-Caribbeans are portrayed as victims.    
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Universities

 According to the Sunday Times documents obtained under the Freedom of Information Act some of the UK’s leading universities are secretly operating selection schemes that favour applicants from poorer backgrounds. Previously universities such as Bristol had introduced controversial schemes but the documents show that some universities routinely filter applicants.    
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Skills Gap

 The British Chambers of Commerce report on UK skills Making the Grade has uncovered the increasing difficulties facing British business when finding employees with the right skills. 55% of businesses said they found it more difficult now than five years ago. The survey in which 304 businesses took part also revealed that businesses find it difficult to access training. Other key findings were:

However education secretary Alan Johnson has proposed it should be compulsory for all employers of 16 and 17 year olds to either provide work based training or release them for education and training. The proposals are contained in Green paper Raising Expectations: Staying in Education and Training www.dfes.gov/consultations . Johnson said the government “would adopt a light touch” but that “If we find that employers who are employing 16 and 17 years without giving them time off, it’s the same regime as we would apply to other areas of employment law. It would be a criminal act like refusing to comply with the minimum wage”.    
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